Issue

Whether a presumption of death which must be rebutted by the Social
Security Administration (SSA) arises under 20 CFR 404.721(b) once a
claimant shows that an individual has been absent from his or her
residence and has not been heard from for seven years or whether the
presumption only arises if the claimant also proves there is no apparent
reason for the absence.

Circuit

Applicability of Ruling

This ruling applies to determinations or decisions at all administrative
levels (i.e., initial, reconsideration, Administrative Law Judge hearing
and Appeals Council review).

Description of Case

Plaintiff Sherry Brewster's husband, Joseph Keller, was a pilot and
airplane mechanic employed by Air Cortez, located in Ontario, California.
Keller has been missing since May 1980.

In 1981 and 1984, plaintiff filed applications for survivors' benefits on
behalf of the couple's two minor children. The evidence developed in
processing the claims showed that, in April 1980, Keller supposedly
piloted a company DC-3 airplane from Ontario, California to San Antonio,
Texas for modifications. Keller later telephoned the company president to
inform him that he had arrived in San Antonio and that he would return to
Ontario on May 9 or 10 after the modifications were completed. When Keller
failed to arrive, the company president called the San Antonio airport and
learned that Keller had never appeared, and further discovered that a
company credit card was missing. A police report was subsequently
filed.

The Ontario police contacted the San Antonio police and learned that
Keller had been under investigation for drug smuggling. According to the
police report, the airplane had not landed at the San Antonio airport as
Keller had reported; rather, the plane had landed at an airport in Waco,
Texas, where Keller and a man named John Flowers had been from April 27
until May 9, 1980. On May 9, 1980, the airplane had refueled with 800
gallons of gasoline, which had been charged with the company credit card.
Drug agents reported seeing the airplane depart in a southerly direction,
and a confidential informant told police that the airplane might be
located in Barranquilla, Colombia, South America. The police report
further stated that plaintiff and Keller's brother had been informed that
Keller had died in an airplane crash in Colombia. The police terminated
their investigation and advised Keller's family to contact the United
States Consulate in South America.

Keller's family contacted the consulate and was informed that a DC- 3
airplane with two bodies had crashed on May 13, 1980, near Barranquilla,
but neither the airplane nor the bodies could be positively identified.
Keller's family was unable to supply adequate dental records to permit
identification. They attempted to secure dental records from the Veterans
Administration (VA), but because Keller had not been a claimant, the VA
had no records.

During the course of their investigation, officers had searched Keller's
locker at Air Cortez, as well as his apartment. In the locker, officers
found a grenade and a driver's license and birth certificate in the name
of Emery Whitthram. Officers also learned that Keller had stated on
several occasions that he wanted "to chuck it all and move to Costa Rica."

The Secretary denied plaintiff's 1981 and 1984 applications on the ground
that she had failed to submit direct evidence that her husband was dead.
The Secretary further found that, because Keller had not yet been missing
for seven years, he could not be presumed dead under the regulations. In
May 1987, plaintiff filed a third application, relying on the presumption
of death created by 20 CFR 404.721(b). The regulation provides that, if a
claimant cannot prove that a person is dead, the Secretary will presume
death if the claimant offers "[s]igned statements by those in a position
to know and other records which show that the person has been absent from
his or her residence for no apparent reason, and has not been heard from,
for at least 7 years."

In addition to the information previously submitted, plaintiff provided a
statement indicating that neither she nor her children had seen or heard
from Keller since May 1980, and that she believed he had died in an
airplane crash in Colombia, South America in May 1980. She also provided
statements from friends and relatives stating that they had not heard from
Keller since May 1980 and knew of no problems that would account for his
disappearance. Lastly, plaintiff submitted a statement from John Flowers'
father that he had not heard from his son since 1980.

Initially, plaintiff's application was granted, but the case was reopened
and, on reconsideration, the decision awarding benefits was reversed.
Plaintiff filed a request for a hearing and the Administrative Law Judge
(ALJ) upheld the denial, finding that plaintiff had not established that
Keller had disappeared for "no apparent reason." The ALJ found that, while
it was possible that Keller and Flowers had died in the plane crash, it
was also possible that Keller had gone into hiding because he was under
investigation for drug smuggling or because he had stolen the airplane and
credit card. The ALJ also noted the possibility that Keller had "arranged
the crash of the aircraft by use of a grenade modified in a similar way to
the one found among Keller's possessions." The Appeals Council upheld the
denial of benefits.

The district court for the District of Minnesota found that plaintiff had
not proved that Keller had been missing for "no apparent reason," and in
the alternative found that the Secretary had rebutted the presumption of
death.

Holding

In reversing the district court's holding, the Eighth Circuit Court of
Appeals held that under 20 CFR 404.721(b) a presumption of death arises
when a claimant proves a wage earner has not been seen or heard from for
seven years. The court observed that this rule is consistent with the
common-law origin of the presumption of death, noting that "it is unfair
to require that the affairs of other persons affected by those of the
missing person be held in abeyance indeterminately, especially when there
is a good chance the missing person is in fact dead." Also, the court
rejected the Secretary's position that the claimant must prove that a wage
earner's disappearance was for no apparent reason, stating that such a
requirement "virtually creates a presumption of life rather than
death."

Additionally, the court rejected the Secretary's alternative argument that
the Agency had rebutted the presumption, stating that to rebut the
presumption of death "requires more from the Secretary than mere
conjecture as to possible explanations for the wage earner['s]
disappearance." Rather, the court said, the Secretary must set forth
evidence that "rationally explain[s] the anomaly of the disappearance in a
manner consistent with continued life." Accordingly, Keller's suspected
criminal activity, along with his stated desire to begin a new life in
Costa Rica, were insufficient in the court's view to overcome the
presumption of death. The court also pointed to other "strong
circumstantial evidence that Keller is dead."

Statement as to How Brewster Differs From Social Security
Policy

By the terms of 20 CFR 404.721(b), the presumption of death arises only
when an individual "has been absent from his or her residence for no
apparent reason, and has not been heard from, for at least 7 years." This
regulation has been interpreted by SSA to mean that a claimant bears the
burden of proving three elements to raise a presumption of an individual's
death: (1) the individual has disappeared; (2) the disappearance has
lasted for seven years; and (3) there is no apparent reason for the
disappearance.

The decision of the Court of Appeals for the Eighth Circuit in
Brewster holds that the plaintiff only bears the burden of proving
the first two elements in order to raise the presumption, and that SSA
bears the burden of rebutting the presumption either by presenting
evidence that the missing individual is alive or by providing an
explanation, other than death, to account for the individual's absence in
a manner that is consistent with continued life rather than death.

Explanation of How SSA Will Apply The Decision Within The Circuit

This ruling applies only in cases in which the claimant resides in
Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota or South
Dakota at the time of the determination or decision at any administrative
level, i.e., initial, reconsideration, Administrative Law Judge
hearing or Appeals Council review.

In cases which involve the application of 20 CFR 404.721(b), the
presumption of death arises if the claimant presents evidence that the
individual has been absent from his or her residence and not heard from
for seven years. The Agency then must bear the burden of rebutting the
presumption, either by presenting evidence that the missing individual is
alive or by providing an explanation, other than death, to account for the
individual's absence in a manner that is consistent with continued life
rather than death.

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